Uncovered receptacle in women's bathroom, in violation of Food Code Rule 5-501.17 (repeat violation).2
Uzma Akhter Shah, the president and owner of Carvel, timely disputed the facts alleged in the Administrative Complaint and requested an administrative hearing. The Division forwarded the matter to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to notice, the telephone final hearing was held in this case on December 6, 2010.
At the hearing, the Division presented the testimony of Jorge Gandolff, and Petitioner's Exhibits 1, 2, and 3 were offered and received into evidence. Ms. Shah testified on behalf of Carvel, and Respondent's Composite Exhibit 1 was offered and received into evidence. At the Division's request, official recognition was taken of section 509.032(6), Florida Statutes; Florida Administrative Code Rules 61C-1.001(14) and 61C-1.005; and Food Code Rules 3-602.11(A), 3-305.11,4-602.11, and 5-501.17.
The one-volume transcript of the proceedings was filed with the Division of Administrative Hearings on December 20, 2010, and the parties timely submitted proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
The Division is the state agency responsible for inspecting and regulating public food service establishments in Florida. See section 509.032(1), Florida Statutes.
Carvel is a food service establishment licensed and regulated by the Department and located at 3148 Coral Way, Miami, Florida 33145.
On July 22, 2009, Jorge Gandolff, a senior inspector of public food service establishments employed by the Division, inspected the premises of Carvel. As an inspector for the Division, Mr. Gandolff was required to complete a Food Service Inspection Report, DBPR Form HR 5022-016 and -015
("Form HR 5022-016 and -15"), for each public food service establishment that he inspected.
During the inspection of Carvel, Mr. Gandolff noted that Carvel was not in compliance with a number of the items listed on the Form HR 5022-016 and -15 inspection report.
Mr. Gandolff noted that, among other things, he "observed soiled reach-in freezer gaskets"; "observed buildup of soiled material on mixer head"; "observed buildup of slime in the interior of ice machine"; observed that "covered waste receptacle not
provided in women's bathroom"; "observed food stored on floor"; "observed food container not properly labeled."
It was Mr. Gandolff's practice, and the usual practice of Division inspectors, to complete the Form HR 5022-016 and -15 inspection report and record the violations he observed at a public food service establishment on a personal digital computer. At the end of the inspection, it was his practice to obtain the signature of the person in charge on the
Form HR 5022-016 and -15 inspection report, print a copy of the report, and review the violations that had been noted with the person in charge.
Mr. Gandolff followed his usual practice in completing the inspection of Carvel on July 22, 2009. He prepared a
Form HR 5022-016 and -15 Food Service Inspection Report setting forth his findings and noted on the report that Carvel "MET INSPECTION STANDARDS during this visit" and that "ANY VIOLATIONS noted herein must be corrected by the NEXT UNANNOUNCED INSPECTION." (Emphasis in original.)
Zoila Fernandez, an employee of Carvel, signed the inspection form, and Mr. Gandolff went over the inspection findings with her.
Mr. Gandolff inspected the premises of Carvel for the second time on November 24, 2009. In addition to several other violations, Mr. Gandolff noted on the Form HR 5022-016 and -15
inspection report that he again "observed soiled reach-in freezer gaskets"; "observed buildup of soiled material on mixer head"; "observed buildup of slime in the interior of ice machine"; observed that "covered waste receptacle not provided in women's bathroom"; "observed food stored on walk-in cooler floor Cardboard boxes of chocolate chip"; "observed food container not properly labeled ice cream containers not labeled stored inside self service freezer in customer area."
These six items were considered repeat violations; that is, these items were found to be out of compliance with the Food Code at the July 22, 2009, inspection. In addition, these six items were marked with an asterisk on the Form HR 5022-016 and -
15 inspection report, which designated them as "critical" violations.
Mr. Gandolff recommended that these items be included as violations in an Administrative Complaint. Mr. Gandolff also noted on the Form HR 5022-016 and -15 inspection report that the "Inspector determined violations require further review, but are not an immediate threat to the public."
Zoila Reyes, an employee of Carvel who was on the premises during the November 24, 2009, inspection signed the inspection report. She was not able to accompany Mr. Gandolff during the entire inspection because the store was busy, but Mr. Gandolff went over the inspection report with her.
Ms. Shah was not present during either of the inspections. It is her practice to come into the store early and prepare the store to open. Her preparations include cleaning the premises and the equipment.
Mr. Gandolff found three items during both the
July 22, 2009, and November 24, 2009, inspections that he wrote up as a single violation of the Food Code and that he considered the most serious violation of the Food Code. The first item was the build-up of food on the mixer head that was not just the normal amount of build-up that occurs during a workday but was old, dry, and crusted. Mr. Gandolff considered this a serious condition because this piece of equipment came in direct contact with food and could contaminate it. The second item was the slime build-up inside the interior of the ice machine, which
Mr. Gandolff considered a serious condition because the ice came into direct contact with the interior of the ice machine and could be contaminated by the slime. The third item was the soiled gaskets on the reach-in freezer that was a black residue probably resulting from the buildup of old product.
Mr. Gandolff considered this a serious condition because the freezer gaskets are very close to the product in the freezer, and the product could be contaminated if it came into contact with the gaskets.
The violation Mr. Gandolff considered the next most serious violation of the Food Code found during both the
July 22, 2009, and November 24, 2009, inspections was a cardboard box containing chocolate chips stored directly on the floor of the walk-in cooler because the food product inside the box could be contaminated by water or any other residue on the floor of the cooler, especially if, as here, the food product is stored in a cardboard box that could absorb water from the cooler floor.
In addition, Mr. Gandolff considered the absence of labels on containers of ice cream stored in a freezer accessible to customers to be a serious violation of the Food Code because a customer must be able to look at the label on the food product and know the ingredients in the product and the date the product was prepared so the customer can make a determination if the product is safe for them to eat.
Mr. Gandolff also considered the uncovered trash receptacle in the women's bathroom a serious violation of the Food Code because such receptacles must be covered to avoid exposure of women's sanitary napkins.
These violations are all critical violations because they pose a significant danger to the public health and because they are identified as critical violations on the inspection report forms Mr. Gandolff completed on July 22, 2009, and
November 24, 2009, recording his observations of the Carvel premises.
Ms. Shah has owned the Carvel store for approximately
14 years, and, during that time, the store has not been cited for any violations as a result of inspections by the Division. The Carvel store owned by Ms. Shah is very small and, because of the poor economic conditions of recent years, Ms. Shah makes very little money at the store and is barely able to keep the business open.
Summary
The evidence presented by the Division is sufficient to establish with the requisite degree of certainty that there were five repeat violations of the Food Code on the premises of Carvel during the November 24, 2009, inspection.
Ms. Shah failed to present sufficient evidence to establish that the violations observed by Mr. Gandolff were not present. First, her explanation of the missing cover on the waste receptacle in the women's bathroom, that the receptacle had just been emptied and that the cover was sitting on the floor beside the receptacle, could have explained the missing cover during the first inspection, but the same explanation would have presented too much of a coincidence to be a persuasive explanation for the missing cover at the second inspection.
Second, Ms. Shah's categorical denial that any equipment on the store's premises was soiled or otherwise not perfectly clean, her testimony that she cleans everything in the store every morning; that the equipment is cleaned continually during the day; and that all supplies are stored properly in the walk-in cooler and her testimony is not sufficient to refute the specific observations noted by Mr. Gandolff on the inspection reports.
Finally, Ms. Shah's testimony that all pre-packed ice cream available for purchase in the store's self-service freezer is packed in containers with labels provided by Carvel, Inc. In the absence of information regarding the content of the labels provided by Carvel, Inc., Ms. Shah's testimony does not refute the Mr. Gandolff's contention that the containers of ice cream did not have labels disclosing the date the ice cream was packed into the containers and the ingredients in the ice cream.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to sections 120.569 and 120.57(1), Florida Statutes (2010).
In its Administrative Complaint, the Division seeks to impose penalties against Carvel that include suspension or revocation of its license and/or the imposition of an
administrative fine. Therefore, the Department has the burden of proving the violations alleged in the Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Pou v. Dep't of Ins. & Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998); and § 120.57(1)(j), Fla. Stat. (2010)("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.").
"Clear and convincing" evidence was described by the court in Evans Packing Co. v. Dep't of Agric. & Consumer Serv.,
550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), as follows:
. . . [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Section 509.261, Florida Statutes (2009), provided that the Division may impose an administrative fine not to exceed $1,000.00 per violation on, or may suspend or revoke the
license of, a public food service establishment that operates in violation of chapter 509 or the rules promulgated under that chapter.
Florida Administrative Code Rule 61C-1.001(14) provides as follows:
Food Code. This term as used in Chapters 61C-1, 61C-3, and 61C-4, F.A.C., means
paragraph 1-201.10(B), Chapter 2, Chapter 3,
Chapter 4, Chapter 5, Chapter 6, and Chapter
7 of the Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines; Annex 5: HACCP Guidelines of the Food Code; the 2001 Food Code Errata Sheet (August 23, 2002); and Supplement to the 2001 FDA Food Code (August 29, 2003), herein adopted by reference.
In its Administrative Complaint, the Division alleged that Carvel violated Food Code Rule 3-602.11(A) and Florida Administrative Code Rule 61C-4.010(1)(c) because food containers stored in a self-service freezer were not properly labeled.
Rule 61C-4.010 provides in pertinent part as follows:
Food Supplies and Food Protection - Except as specifically provided in this rule, public food service establishments shall be subject to the provisions of Chapter 3, Food Code, as adopted by reference in Rule 61C-1.001, F.A.C.
* * *
(c) Labeling - Public food service establishments which prepare and package food products for sale within the establishment must ensure that packaged food
products are properly labeled. A label is not required on food products placed in a wrapper, carry-out box, or other nondurable container for the purpose of protecting the food during service to and receipt by the customer. Package labels must contain the following information:
Identity and description of product;
Date product was packaged; and
Name and address of establishment which prepared and packaged product.
Based on the findings of fact herein, the Division has proven by clear and convincing evidence that the pre-packed ice cream available for purchase from the self-service freezer in the store was not properly labeled and has, therefore, proven that Carvel was in violation of Rule 61C-4.010(1)(c).
In its Administrative Complaint, the Division alleged that Carvel violated Food Code Rule 3-305.11, which provides:
Food Storage.
Except as specified in ¶¶ (B) and (C) of this section, FOOD shall be protected from contamination by storing the FOOD:
In a clean, dry location;
Where it is not exposed to splash, dust, or other contamination; and
At least 15 cm (6 inches) above the floor.
FOOD in packages and working containers may be stored less than 15 cm (6 inches) above the floor on case lot handling EQUIPMENT as specified under § 4-204.122.
Pressurized BEVERAGE containers, cased FOOD in waterproof containers such as bottles or cans and milk containers in plastic crates may be stored on a floor that is clean and not exposed to floor moisture.
(Emphasis in original.) Based on the findings of fact herein, the Division has proven by clear and convincing evidence that a cardboard box of chocolate chips was stored on the floor of the walk-in cooler and has, therefore, proven that Carvel was in violation of Food Code Rule 3-305.11.
In its Administrative Complaint, the Division alleged that Carvel violated Food Code Rule 4-602.11(C) and (D), which provides in pertinent part:
Except as specified in ¶ (D) of this section, if used with POTENTIALLY HAZARDOUS FOOD, EQUIPMENT[,] FOOD-CONTACT SURFACES[,] and UTENSILS shall be cleaned throughout the day at least every 4 hours.
Surfaces of UTENSILS and EQUIPMENT contacting POTENTIALLY HAZARDOUS FOOD may be cleaned less frequently than every 4 hours if:
In storage, containers of POTENTIALLY HAZARDOUS FOOD and their contents are maintained at temperatures specified under Chapter 3 and the containers are cleaned when they are empty;
UTENSILS and EQUIPMENT are used to prepare FOOD in a refrigerated room or area that is maintained at one of the temperatures in the following chart and:
The UTENSILS and EQUIPMENT are cleaned at the frequency in the following chart that corresponds to the temperature:
Temperature Cleaning Frequency
5.0°C (41°F) or less 24 hours
>5.0°C - 7.2°C(>41°F - 45°F) 20 hours
>7.2°C - 10.0°C(>45°F - 50°F) 16 hours
>10.0°C - 12.8°C(>50°F - 55°F) 10 hours; and
The cleaning frequency based on the ambient temperature of the refrigerated room or area is documented in the FOOD ESTABLISHMENT.
Containers in serving situations such as salad bars, delis, and cafeteria lines hold ready-to eat POTENTIALLY HAZARDOUS FOOD that is maintained at the temperatures specified under Chapter 3, are intermittently combined with additional supplies of the same FOOD that is at the required temperature, and the containers are cleaned at least every 24 hours;
TEMPERATURE MEASURING DEVICES are maintained in contact with FOOD, such as when left in a container of deli FOOD or in a roast, held at temperatures specified under Chapter 3;
EQUIPMENT is used for storage of PACKAGED or unPACKAGED FOOD such as a reach- in refrigerator and the EQUIPMENT is cleaned at a frequency necessary to preclude accumulation of soil residues;
The cleaning schedule is APPROVED based on consideration of:
Characteristics of the EQUIPMENT and its use,
The type of FOOD involved,
The amount of FOOD residue accumulation, and
The temperature at which the FOOD is maintained during the operation and the potential for the rapid and progressive multiplication of pathogenic or toxigenic microorganisms that are capable of causing foodborne disease; or
In-use UTENSILS are intermittently stored in a container of water in which the water is maintained at 60°C (140°F) or more and the UTENSILS and container are cleaned at least every 24 hours or at a frequency necessary to preclude accumulation of soil residues.
(Emphasis in original.) Based on the findings of fact herein, the Division has proven by clear and convincing evidence that the gaskets in the reach-in cooler at Carvel were soiled; that built-up, soiled material was present on the mixer head used at Carvel; and that slime had built-up in the ice machine. The Division had, therefore, proven that Carvel was in violation of Food Code Rule 4-602.11(C) and (D).
In its Administrative Complaint, the Division alleged that Carvel violated Food Code Rule 5-501.17, which provides: "Toilet Room Receptacle. A toilet room used by females shall be provided with a covered receptacle for sanitary napkins." Based on the findings of fact herein, the Division has proven by clear and convincing evidence that the receptacle in the women's bathroom had no cover and has, therefore, proven that Carvel was in violation of Food Code Rule 5-501.17 (repeat violation).
Florida Administrative Code Rule 61C-1.005 provides in pertinent part as follows:
Disciplinary Guidelines.
This rule sets out the disciplinary guidelines for imposing penalties upon public lodging establishments and public food service establishments under the jurisdiction of the Division of Hotels and Restaurants (division) in administrative actions. The purpose of this rule is to notify licensees of the standard range of penalties routinely imposed unless the division finds it necessary to deviate from the standard penalties for the reasons stated within this rule.
These disciplinary guidelines are descriptive in nature and do not use the language used to formally allege a violation in a specific case. This rule is not intended to specifically describe all possible violations of law that may be committed by a public lodging establishment or public food service establishment and that may be subject to penalty imposed by the division.
The division may impose penalties against a public lodging establishment or public food service establishment for a specific violation not included in the language of this rule. If a specific violation is not included in the language of this rule, the division shall impose a penalty corresponding to the most similar violation listed in this rule.
These disciplinary guidelines do not limit the division's authority to order a public lodging establishment or public food service establishment to cease and desist from any unlawful practice, or other action authorized by law.
Definitions.
"Critical violation" means a violation determined by the division to pose a significant threat to the public health, safety, or welfare and which is identified as a food borne illness risk factor, a public health intervention, or critical in DBPR Form HR-5022-014 Lodging Inspection Report or DBPR Form HR-5022-015 Food Service Inspection Report, incorporated by reference in subsection 61C-1.002(8), F.A.C., and not otherwise identified in this rule.
"Non-critical violation" means a violation not meeting the definition of critical violation and not otherwise identified in this rule.
"First offense" means a violation of any law subject to penalty under Chapter 509, F.S., when no disciplinary Final Orders involving the same licensee have been filed with the Agency Clerk within the 24 months preceding the date the current administrative complaint is issued.
"Second offense," and "second and any subsequent offense" mean a violation of any law subject to penalty under Chapter 509, F.S., after one disciplinary Final Order involving the same licensee has been filed with the Agency Clerk within the 24 months preceding the date the current administrative complaint is issued, even if the current violation is not the same as the previous violation.
"Third and any subsequent offense" means a violation of any law subject to penalty under Chapter 509, F.S., after two or more disciplinary Final Orders involving the same licensee have been filed with the Agency Clerk within the 24 months preceding the date the current administrative complaint is issued, even if the current
violation is not the same as the previous violation.
Standard penalties. This section specifies the penalties routinely imposed against licensees and applies to all violations of law subject to a penalty under Chapter 509, F.S. Any violation requiring an emergency suspension or closure, as authorized by Chapter 509, F.S., shall be assessed at the highest allowable fine amount.
Non-critical violation.
1st offense - Administrative fine of
$ 150 to $ 300.
2nd offense - Administrative fine of
$ 250 to $ 500.
3rd and any subsequent offense - Administrative fine of $ 350 to $ 1000, license suspension, or both.
Critical violation. Fines may be imposed for each day or portion of a day that the violation exists, beginning on the date of the initial inspection and continuing until the violation is corrected.
1st offense - Administrative fine of
$ 250 to $ 500.
2nd offense - Administrative fine of
$ 500 to $ 1,000.
3rd and any subsequent offense - Administrative fine of $ 750 to $ 1,000, license suspension, or both.
* * *
Aggravating or mitigating factors.
The division may deviate from the standard penalties in paragraphs (a) through (h) of
subsection (6) above, based upon the consideration of aggravating or mitigating factors present in a specific case. The division shall consider the following aggravating and mitigating factors in determining the appropriate disciplinary action to be imposed and in deviating from the standard penalties:
Aggravating factors.
Possible danger to the public.
Length of time since the violation occurred.
Number of violations in the current administrative complaint.
Severity of violations in the current administrative complaint.
Disciplinary history of the licensee within the 60 months preceding the date the current administrative complaint was issued.
Number of Emergency Orders of Suspension or Closure against the same licensee filed with the Agency Clerk by the division within the 12 months preceding the date the current administrative complaint was issued.
The current administrative complaint alleges a violation for obstruction of division personnel.
The licensee was prosecuted by another authority having jurisdiction resulting in a violation of Chapter 509, F.S., including but not limited to cases based on discrimination, civil rights violations, and criminal violations.
Actual physical damage or bodily harm caused to persons or property by the violation.
Any other aggravating factors, as relevant under the circumstances.
Mitigating factors.
Violation resulted from an act of God or nature.
Length of time since the violation occurred.
Length of time the licensee has been in operation.
Effect of the penalty upon the licensee's livelihood.
Attempts by the licensee to correct the violation.
Number of previous inspections without violations of Chapter 509, F.S., and the rules adopted pursuant thereto.
Disciplinary history of the licensee within the 60 months preceding the date the current administrative complaint was issued.
Any other mitigating factors, as relevant under the circumstances.
The following critical violations are considered non-critical violations for the purpose of determining the administrative penalty:
* * *
(b) The waste receptacle in the restroom for women is lacking a cover.
Pursuant to rule 61C-1.005(5)(a) and (8)(b), the Division has proven that Carvel committed three critical and one non-critical violation of the Food Code. In its Proposed
Recommended Order, the Division has proposed that an administrative fine of $1350.00 be imposed on Carvel. The Division did not, however, indicate the amount of the total administrative fine proposed that it allocated to each violation, nor did it indicate in its Proposed Recommended Order that it had considered any aggravating or mitigating factors that might justify deviation from the penalties identified in rule 61C-1.005(6).
Based on the findings of fact herein, none of the aggravating factors identified in rule 61C-1.005(7)(a) are present in this case, particularly in light of Mr. Gandolff's comment in the Form HR 5022-016 and -15 inspection report of the November 24, 2009, inspection that the violations "are not an immediate threat to the public."
On the other hand, based on the findings of fact herein, several mitigating factors are applicable in this case: Carvel has been owned and operated by Ms. Shah for approximately
years; Carvel has not previously been cited for any repeat violations for the Food Code and has not previously been the subject of a disciplinary action by the Division; and a fine in the amount proposed by the Division would have an effect on the livelihood of Ms. Shah and her employees since she is barely able to stay in business during the current economic difficulties.
It is, therefore, recommended that a penalty of
